Southern Ry. Co. v. Howerton

• Decision Date: 23 June 1914
• Docket Number: No. 22656.,22656.
• Citation: 182 Ind. 208,105 N.E. 1025
• Parties: SOUTHERN RY. CO. et al. v. HOWERTON.
• Court: Indiana Supreme Court

182 Ind. 208

105 N.E. 1025

SOUTHERN RY. CO. et al.

v.HOWERTON.

No. 22656.

Supreme Court of Indiana.

June 23, 1914.

Action by James Howerton against the Southern Railway Company and another. A judgment for plaintiff was affirmed by the Appellate Court (101 N. E. 121) and rehearing denied(103 N. E. 121), and the case is transferred to the Supreme Court under Burns' Ann. St. 1914, § 1394. Reversed and remanded for new trial.Humphrey & Humphrey, of Louisville, Ky., John D. Welman, of Evansville, J. L. Suddarth, of English, and Walter V. Bulleit, of New Albany, for appellants. Ewing & Roose, of New Albany, Major W. Funk, of Corydon, Philip Seacat, of Depauw, and Frank S. Roby, Ward H. Watson, Sol. H. Esarey, and Elias D. Salsbury, all of Indianapolis, for appellee.

MYERS, J.

This is an action begun November 23, 1908, for damages for personal injuries claimed to have been sustained by appellee while in the employ of appellants, as a track laborer, from negligence of appellants. It is alleged in the complaint that appellant Southern Railway Company is a corporation organized under the laws of Virginia, and appellant Southern Railway Company of Indiana a corporation organized under the laws of Indiana; that the latter company owned and operated a line of steam railway from Louisville, Ky., through Harrison county, Ind., and Illinois to East Saint Louis in the latter state, and appellant Southern Railway Company owned the rolling stock and equipment used in operation of the line, and did lease, use, and operate it as a common carrier for hire of passengers and freight, between the points named, under some agreement, contract, or arrangement between the two companies, the nature of which is alleged to be unknown to the plaintiff; that appellee was employed as a section hand on the track in transporting rails on a push car from one point to another in Harrison county. The gravamen of the action is in not furnishing appellee a safe place to work, and so maintaining it, in that, he was put to work at pushing this car over a track on which appellants had placed signal torpedoes, of high explosive power, which rendered the use of the track for that purpose highly dangerous in doing the work with the push car, as he was directed to do it, without warning or notifying him of the presence of the torpedo, or the danger, of both which he is alleged to have been ignorant, and of which appellants were fully informed, and had knowledge, and in the course of the work, as he was directed to perform it, he was injured; that he had no experience with torpedoes, or explosives of a like nature, and did not know of the dangers attending their use on the tracks, and his eyesight was defective, and he could not see small objects at a distance of more than five feet, all of which appellants at the time knew. The torpedo is alleged to have been 1 1/4 inches in diameter, and one-fourth of an inch in thickness, of metal construction, and was placed on the rail, and the push car could not be moved without passing over it, and that in moving the push car over the track as he was directed, it ran over and exploded the torpedo, whereby metal parts of the torpedo were driven into his right leg, tearing and lacerating it, and permanently injuring the leg, so that the use of it was thereby entirely lost. The errors assigned, and not waived, are in overruling the demurrer to the complaint, in overruling the motion for judgment upon the interrogatories, and answers, and in overruling the motion for a new trial.

[1][2][3][4][5][6][7] In the attack upon the complaint, it is claimed: (1) That nothing is alleged to have been defective or out of repair in the track, and there is no showing therefore that the place of work was unsafe; (2) that the doctrine of furnishing a safe place to work does not apply if the place is made unsafe by other servants in carrying out the details of the work; and (3) that it is not alleged that the order to haul the rails was negligent, and as the only negligence charged is in permitting the torpedo to remain on the track, without warning appellee of the peril, the presumption is that the negligence was that of a fellow servant, because corporations must do such work by servants, and that a complaint must, in order to recover for the negligence of a vice principal, by its averments, exclude the vice principal, and even the master, from the position or duties of a fellow servant.

In the respects claimed, the complaint alleges that the track was in all respects safe and without danger to him in doing the work assigned to him, in the absence of torpedoes, or other dangerous or explosive materials on the track or rails, but that it was extremely dangerous to use the push car with torpedoes on the track, or rails. The negligence charged is in providing an insecure, defective, and unsafe place to work, in that they “placed on said track, on the north rail thereof, over which he was required to pass, *** an explosive torpedo *** composed of metal parts, and a powerful explosive, and so constructed that when said torpedo came in contact with or was struck by any other object, it would explode with great force and danger to any person in close proximity thereto, *** and in allowing and permitting the torpedo to be and remain on the track and rail without barriers, guards, or signals of any kind to warn him of its presence, and without warning him of its presence or of the danger; that the track at that point was downgrade, and that the push car was not provided with any brake or device to regulate the speed, and that he was instructed to control the speed in going down the grade, to sit on the side or end of the car and check and control its speed by using his foot in catching the ground at intervals, or to do so by using a stick or chock under the wheels; and that he was sitting on the side of the car with his feet hanging over, in order to control the car as directed, at the time the explosion occurred, by which he was injured.”

As to the first proposition, it is urged by appellant that if there was nothing defective or out of order, and no allegation that the torpedo was negligently or unlawfully placed on the track, or without purpose, it must be presumed that it was placed there for a proper purpose, and that, until the purpose was accomplished, it would not be negligence for it to remain, and Mize v. Louisville, etc., Co. (1907) 127 Ky. 496, 105 S. W. 908, 16 L. R. A. (N. S.) 1084, is relied on. There is no allegation in this complaint as to the purpose for which the torpedo was placed on the rail, and it may be presumed to have been for a lawful purpose, but it is alleged that without the torpedo on the rail, it was safe for appellee to push the car between the points where he was required to work, but that the defendants carelessly and negligently made it unsafe and insecure by placing the torpedo on the rail, and permitting it to remain there without notice to him, or any warning of its presence, and we think the facts alleged are not open to the presumption that putting the torpedo on the rail and permitting it to remain there was the negligence of a fellow servant. On appellants' own theory that the torpedo was properly there, it follows that it was there by virtue of some rule of administration, or authority of appellants, but it does not follow that it was not negligently suffered to be and remain. Negligence, or no negligence, is not to be determined by the question whether it had discharged the purpose for which it was put there, for neither the conditions under which it was put there, nor any reason for its being there, are shown. For all that appears, it may not have been necessary; if it was necessary, it does not follow that it should have been left there to be run over by the push car, for manifestly it was not essential in the use of that car.

It is also alleged that appellants knew that appellee could not operate the push car without running over and exploding the torpedo. It is also alleged that it was no part of appellee's duty to keep the track or rails in safe condition and free from explosives or torpedoes; that he had no authority over other workmen, nor any connection with other servants, and under the allegations seems to have been doing a specific work alone.

As opposed to the rule in Mize v. Louisville, etc., Co., supra, is Illinois, etc., Co. v. Leisure (Ky.) 90 S. W. 269, in which a complaint similar to the one before us was held sufficient. The distinguishing feature of the two cases is that in the Mize Case there was no allegation that Mize could not, by the use of ordinary care, have discovered the torpedo, while in the Leisure Case, as here, it is alleged that he had no knowledge, had defective eyesight, and could not discover the torpedo by the use of ordinary care. In other words, in the Mize Case the assumption of risk was treated as not having been negatived by the pleading, and the opinion is grounded on that proposition.

It is next urged that it is not alleged that it was the custom to give notice of torpedoes, or furnish barriers or guards, or that the failure to do so was the proximate cause of the injury, and does not allege negligence in the failure to give notice or furnish guards; hence there is not sufficient alleged to show both a duty and its violation. We do not so view the allegations. It is alleged that the presence of the torpedo was dangerous, and that appellants knew it, that appellee was neither informed of its presence or its danger, and that they carelessly and negligently failed to notify or inform him of either fact; that they knew he must encounter this dangerin performing this work, and that he did not know it, and by the use of ordinary care could not have learned of the presence or danger of the torpedo, and that appellants knew it. When there is shown to be knowledge of a situation of danger created by the master, which the servant must...